1. (U) The Commission of Inquiry into Post-Election Violence
(CIPEV) submitted its report to President Mwai Kibaki and
Prime Minister Raila Odinga on October 15 (Ref A). The
report proposes the establishment of a special tribunal to
try high-level organizers of post-election violence. It also
proposes comprehensive reform of the Kenya Police Service and
Administration Police, including their merger. CIPEV found
sufficient evidence to charge ten high-level organizers of
post-election violence. Justice Philip Waki, the chairman of
the commission, briefed the local diplomatic community on
October 16 on the report and emphasized that the
international community had an important role in keeping
pressure on the government to ensure implementation. He
noted that Kibaki and Odinga promised to implement the
report's proposals, but expressed fear that, like prior
commissions of inquiry, CIPEV's proposals could be undermined
by Kenya's culture of impunity. He and the other
Commissioners also appealed to the international community to
finance the initiatives contained in the report.

2. (U) CIPEV presented its report to Kofi Annan on October
17, along with the names of the ten high-level organizers of
post-election violence. Annan has agreed to deliver the
names of the accused to the International Criminal Court
(ICC) if sufficient steps are not taken to ensure
accountability. CIPEV's recommendations provide a solid
foundation for Kenya to begin to address issues of
accountability and to undertake much-need police reform. We
will weigh in as necessary to ensure that its proposals are
implemented and will consider providing assistance, if
requested. End Summary.

--------------
THE COMMISSION
--------------

3. (U) The so-called Waki Commission, or Commission of
Inquiry into Post-Election Violence (CIPEV), was formed as
part of the Kofi Annan-led mediation process which brought an
end to Kenya's post-election crisis. CIPEV was mandated to
make findings of fact related to post-election violence, to
recommend measures to prevent future violence, and to propose
legal actions against those found guilty of organizing or
perpetrating acts of post-election violence (Ref C). As a
commission of inquiry, all those providing evidence did so
under oath. CIPEV functioned on an adversarial basis, with
those providing evidence entitled to legal representation and
subject to cross-examination (Ref C).

4. (U) The CIPEV submitted its report to President Mwai
Kabaki and Prime Minister Raila Odinga on October 15; the
following day CIPEV Commissions and the Commmission Secretary
briefed the diplomatic community on the report and its
findings. The underlying assumption of the report is that
Kenya's criminal justice system is capable of trying
low-level perpetrators, but it is neither capable nor willing
to hold high-level figures accountable. Therefore, CIPEV
focused its investigative efforts on high-level organizers
and financiers of post-election violence, individuals
heretofore considered above the law and effectively protected
by Kenya's so-called "culture of impunity." The key CIPEV
recommendation is the estabishment of an internationally
supported tribunal that will enforce the law and ensure
accountability; the recommended mechanism would be
independent of Kenya's judicial and police investigation
authorities, which have largely shown themselves incapable or
unwilling to hold powerful figures accountable.

NAIROBI 00002401 002 OF 004

5. (U) The Special Tribunal for Kenya (the Tribunal), as
recommended by CIPEV, would try high-level organizers of
post-election violence, and be based on a constitutional
amendment. CIPEV considers the constitutional amendment
necessary to head off constitutional challenges -- which have
been used to delay or overturn previous attempts to prosecute
powerful persons. The Tribunal would have its own
investigative and prosecutorial capacity, its own public
defenders office, trial chamber and appeals chamber, and the
ability to protect witnesses. Waki stated that, while
Kenyans would head the three-member Trial and Appeals
Chamber, the Special Tribunal needs a significant
international component to give it credibility. The CIPEV
report proposes that each Chamber include two judges from
Commonwealth states. It also suggests that the investigative
branch be headed by an international. The presence of
international investigators would greatly increase public
willingness to come forward, Waki believes.

6. (U) In the course of its investigation, CIPEV gathered
evidence it believed sufficient to raise charges against ten
politically well-connected persons (Septel), according to
Waki. Waki did not exclude the possibility that charges
could be raised against additional individuals, but he said
further investigations would be needed to do so. CIPEV
decided not to release the names of the ten individuals or
make public the evidence against them. Releasing these names
would divert public discussion from the substance of the
report, according to Waki. Waki stated that he expects the
President and Cabinet to approve the proposal to establish
the Tribunal soon and submit the proposal to parliament.
Parliament will then adopt the constitutional amendment and
enabling legislation on its own timeline, after which the
President would assent. The Tribunal could be stood up
within 45 days from the Act coming into force. Waki hoped
that the Tribunal could be stood up in about four to five
months.

-------------------------------
ROLE OF STATE SECURITY AGENCIES
-------------------------------

7. (U) In the briefing for the diplomatic community,
Commissioner Gavin McFadyen, a former Deputy Commander of the
New Zealand national police force, stated that there was lack
of coordination among the National Security and Intelligence
Service (NSIS), the Kenya Police Service (KPS), and the
Administration Police (AP). Specifically, the NSIS had some
very good advance information about preparations to undertake
post-election violence, but the police services did not act
on the information, according to McFadyen. He concluded that
the NSIS performed its information gathering function well,
but expressed "grave reservations" about some NSIS activities
in the run-up to, and the aftermath of, the elections.
McFadyen particularly criticized the NSIS attempt to obtain
election observation accreditation for 55 of its officers,
terming it an illegitimate attempt to influence the
election's outcome.

--------------------
POLICE REFORM NEEDED
--------------------

8. (U) The CIPEV report describes the KPS and AP as poorly
prepared for the elections. It blames the KPS and AP
leadership for the scale of the violence, and concludes that
the violence could have been much better contained had the
police acted and planned in accordance with the information
known in advance. According to McFadyen, CIPEV took evidence
of innumerable instances where police officers acted bravely
and attempted to stop the violence. However, the police were
overwhelmed by the scale of the violence. Still, there were
instances when police either did nothing to stop or actively
assisted in acts of post-election violence. Additionally,
CIPEV took evidence on 405 deaths caused by police shootings.
McFadyen concluded that many police shootings could not be
explained legally or operationally. McFadyen was
particularly critical of the behavior of the AP. He stated
that the AP top leadership acted "nefariously and contrary to
law," especially in sending 1,600 AP officers to act as PNU

NAIROBI 00002401 003 OF 004

polling observers in the opposition stronghold of Nyanza
Province. McFadyen noted that the AP was too closely
identified with local authorities, which hampered its
credibility with the Kenyan people.

9. (U) CIPEV recommends a series of concrete reforms for KPS
and AP, including a thorough review and revision of tactics
and use of force doctrine employed by Kenyan police, the
creation of a modern Code of Conduct, and a complete revision
of the Police Act. The report also recommends that a
professional police officer head the Kenyan police service.
(Note: Police Commissioner Hussein Ali is a career military
officer. End Note). In its most sweeping proposal, CIPEV
proposes merging the AP and KPS. McFadyen acknowledged the
difficulties of merging distinct institutions with unique
cultures, but stated that, "sometimes the hard work is
worthwhile." CIPEV also proposes the establishment of a
Police Reform Group, headed by an international with
experience in police reform, to undertake a four month
top-to-bottom review to suggest necessary further reforms.
The report also advises the establishment of a police
ombudsmen's office, which would be authorized to review
current complaints and disciplinary processes within the KPS
and would have the power to hear and investigate public
complaints against the police.

10. (U) CIPEV made a significant effort to address
gender-based violence (GBV) in its investigation (Ref B).
George Kegoro, the Secretary to CIPEV, told Poloff that CIPEV
established partnerships with prominent NGOs around the
country, especially the Kenyan Federation of Women Lawyers
(FIDA). FIDA provided lawyers to take "in camera" testimony
of survivors of GBV. The CIPEV report concludes that most
victims of GBV were poor women, although some men also
experience GBV, and that sexual violence was generally
ethnically motivated. Most persons who came forward to
testify had been gang-raped. The report alleges that a
significant number of perpetrators of GBV were members of
police forces. It also says that police were not prepared to
treat GBV as seriously as other types of crime. Individuals
testified that police often refused to take reports of GBV,
although others testified that some police assisted victims
of violence to obtain medical assistance. The report
concludes that it is necessary to educate and train police
services to take GBV seriously. The report proposes the
establishment of a Rapporteur on Sexual Violence to advise
police on GBV. The report also recommends compensation to
victims of GBV.

11. (SBU) Comment: Commissioner Ali responded on October 17
to the report's damning conclusions related to police
treatment of GBV by announcing the formation of a panel of 20
female officers to re-examine cases of GBV with the intent to
bring charges against perpetrators. However, it is very
difficult to prosecute GBV cases without fresh evidence.
Ali's move appears to be more an effort at damage control
than a committment to treat GBV seriously. End Comment

12. (U) Kofi Annan traveled to Nairobi and received the CIPEV
report on October 17. CIPEV and Annan agreed that CIPEV
would give him the names of the ten people and evidence
against them. If, at an indeterminate future date, it was
clear that either the Tribunal would not be created or that
it was being subverted, Annan is to submit the names and
evidence to the International Criminal Court (ICC) for
investigation and possible prosecution. Last week, the
Special Prosecutor of the ICC was quoted in the press as
stating that investigating the events in Kenya remains a
priority.

-------
COMMENT

NAIROBI 00002401 004 OF 004

-------

13. (SBU) CIPEV's efforts to get at the heart of the
post-election violence are laudable, especially given the
short mandate and limited resources at its disposal (Ref B).
Its proposals provide a solid foundation for Kenya to begin
to address issues of accountability and to undertake
much-need police reform. The report puts police leadership
under pressure and could provide impetus for President Kibaki
to reconsider his support for Commissioner Ali. Thus far
President Kibaki and Prime Minister Odinga have given
positive signals regarding implementation of the reports
conclusions. In addition, influential political figures on
both sides of the grand coalition have publicly urged action
against those implicated in post-election violence. Kenyan
public opinion has also been overwhelmingly positive,
demonstrating once again that Kenyans want to ensure that
conflict such as the post-election violence does not recur.
However, the culture of impunity in Kenya remains strong and
the CIPEV proposals provide ample opportunity to those who
might want to scuttle the strong measures proposed. Post
will continue to support implementation of the report's
proposals, and will consider providing appropriate
assistance, if requested.
RANNEBERGER

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